“During times of universal deceit, telling the truth is a revolutionary act.”

-- George Orwell

Toxic Justice: A Conspiracy of Silence

Nancy Swan's book with this title will be published in 2009 and will describe her metamorphosis from classroom teacher to severely injured victim to ardent crusader for judicial reform. Many obstacles had to be overcome in her quest for justice. Others have set about on similar missions only to fall exhausted, short of their goal. Swan shows us the virtue of perservance. She stands as a symbol of strength and tenacity for those about to embark on their own treacherous voyage in search of justice.

The Problem Defined  An Introduction

NANCY SWAN

June 9, 2007

The Jackson Clarion Ledger reported on August 1, 2002 that thousands of angry doctors, lawyers and businessmen had packed into Bennett Auditorium at the University of Southern Mississippi for a legislative hearing "to reform the civil justice system." The reporter led his story by quoting me, the only woman and the only nonprofessional to speak.

I remember the crowd had grown so quiet by the time I had reached the podium, I was afraid the microphone would pick up the sound of my heart pounding in my chest. Masking my fear, I smiled at the dozen legislators seated along a table on the stage. They did not know that what I was about to reveal was a violation of a court order that could send me to jail.

For the next ten minutes I exposed the dark side of the law, the cover up of toxic injuries at a public school and the acrid corruption that until now had been hidden, shrouded in secrecy. With just a few minutes left to go, my voice was barely above a whisper, my damaged vocal chords and lungs were straining under the effort. I leaned into the microphone. "This evening, I transfer to you," I said, stopping every few words to breathe, "the burden of Mississippi's responsibility for the injured teachers and children at Long Beach Middle School, who were harmed by the wrong decision of public officials, then wronged again by Mississippi's civil justice system.

"I give you the memory," I said, swallowing to choke back the tears, "the memory of the children in my classroom, struggling to breathe, suffering from chemical burns to their respiratory systems." Then looking up, tears streaming down my cheeks, I said, "And, the frustration and physical pain of toxic brain damage."

Exhausted from having pushed myself beyond my emotional and physical limits, I paused and looked at each lawmaker. "I give you the responsibility of what went wrong, so grotesque and inconceivable," I said, anger slowing edging into my voice, "that the politically powerful of Mississippi would not allow it to be told by our newspapers; a case so corrupted, it was not allowed to be heard in Mississippi courts."

When I finished there was silence. I closed my folder, turned, and started to walk back to my seat. The auditorium exploded with applause. Chairman Watson banged his gavel, but no one paid any attention. Lawmakers and politicians, who had previously turned a deaf ear, asked for more information. News reporters, who had ignored me, wanted to hear my story.

Perhaps they knew what I did not.

The number of schools with environmental dangers is staggering. The U.S. Environmental Protection Agency estimates that half of America's 120,000 schools that enroll 54 million children have polluted indoor air, which the agency considers one of the top five human health hazards. The U.S. Government Accounting office issued its report in 1996 with the stunning conclusion that more than 14 million children were in school buildings that threatened their health.

After a thorough investigation, Healthy Schools Network, a national environmental health organization, concluded in its shocking report that, "No one is in charge of protecting children from harmful environment exposure at school ... that the federal agencies are stumbling. They are aware of the problems but have no direction on how to deal with them." Lloyd Kolbe, the founding director of the federal Centers for Disease Control (CDC) and Prevention's Division of Adolescent and School Health (DASH), observed that the millions of children who attend polluted schools is "America's single largest unaddressed children's health crisis."

Our government has held school systems accountable for student achievement, but has done nothing to hold schools accountable for student safety. With no accountability and no oversight, school boards and administrators have continued to place students and personnel at risk. With no regulation, companies who profit from lucrative contracts with schools will continue to store and use dangerous chemicals and products on school grounds.

Sovereign immunity, corruption and a conspiracy of silence in our schools, our government, and even in our courts are also to blame for the lack of accountability and the failure to create agencies to protect school children and teachers. Companies who put schools at risk know they can rely upon the courts, lawmakers and political contributions to hide school injuries caused by negligence or shoddy workmanship.

In Battling Corruption in America's Schools, Lydia Segal wrote, "When construction and repair contracts are rigged, the work is often shoddy or not done at all. Neglected buildings not only create safety hazards, but also harm learning." Schools are even quicker to hide injuries. Segal wrote about the problems of investigating the waste, fraud and abuse of power in schools: "Corruption by its very nature is clandestine. The parties involved have incentives to hide it."

My story, Toxic Justice: A Conspiracy of Silence, illustrates the need for the creation of a government agency or agencies to: 1) investigate school injuries, 2) set up a system of regulation to prevent dangerous chemicals and products from being stored or used around school children and teachers, 3) require schools to advise and warn parents of dangers to children and teachers, and 4) make it unlawful to conceal school injuries or unsafe school conditions.

In 1985, while I was teaching in Mississippi, I was exposed to and injured by spray-on foam roofing products. Among the serious injuries and disabilities I battle with are brain damage, chronic respiratory problems and restrictive lung disease, a permanent asthma-like condition. Exposure to isocyanate, one of the extremely dangerous chemicals in spray-on foam roofing and coating products, is known to cause asthma and asthma-like symptoms, burns to respiratory systems, eyes and skin tissue, and brain damage and cancer.

That same year, teacher Lynn DeLong was also injured by isocyanate along with a number of children after spray-on foam roofing and sealant products were applied at Inverness Middle School in Florida. Shortly afterward, a school in southern California also reported similar injuries after a foam roofing system had been applied to their school.

In 1994, injuries were reported after application of a foam roof and sealant at a Dallas, Texas school. The CDC investigated and concluded [see PDF] that isocyanate exposure from the foam roofing sealing compound had caused the elevated prevalence of physician diagnosed asthma in children and personnel.

Despite two decades of reports of chemical injuries to school children and teachers, no measures were taken by the CDC to protect children and teachers from the storage and use of toxic products at schools.

One year later the CDC reported an alarming statistic, the rate of asthma in school children had more than doubled since 1980. Asthma was also increasing among teachers. In 2002, the CDC reported that "Asthma, an environmentally triggered illness, is the nation's leading cause of absenteeism due to chronic illness, and teachers lead many other workers in rates of occupational asthma."

Tragically, serious injuries to children and personnel continue to be reported as a result of spray-on foam roofing and sealant products applied to schools. Because lawmakers have failed to create laws that regulate the storage and use of toxic chemicals and dangerous products around school children, schools are still targeted by manufacturers and applicators of these products.

In the wake of 9-11, lawmakers eagerly created powerful agencies and provided enormous funding to protect Americans from toxins which theoretically could be harbored or used by terrorists. The world has observed how quickly and forcefully our government can act when dealing with perceived chemical threats. Tragically, after decades of actual reports of thousands of injuries from dangerous chemicals and substances used on school grounds, no such government agencies were created to effectively investigate or protect school children and personnel. It is up the public to make our government act just as quickly to protect its children in the face of actual injuries and evidence of dangerous school environments.

My story will help to draw national interest to this health crisis by exposing the lack of accountability for unsafe schools and the corruption in our schools, government and our courts that has allowed school injuries to be hidden behind a wall of secrecy. Toxic Justice is the alarming, true story of the cover-up of chemical injuries at a small town public school that ultimately led me to unravel a web of corruption involving our nation's highest offices. Written to read like a legal thriller, my story will shock and anger readers and encourage them to work to make our nation's schools safer and to hold our government accountable.

Nancy Swan discusses her case on "Change of Venue," hosted by Zena Crenshaw on blogtalkradio November 17, 2008

Toxic Justice: A Conspiracy of Silence(A Summary)

For three days in October 1985, more than one thousand students and teachers at Long Beach Junior High School were exposed to dangerous levels of isocyanate, one of the most toxic chemicals manufactured and a chemical responsible for more than ten thousand deaths in Bhopal India. During a roofing project gone wrong, these chemicals were sprayed into my classroom through open windows, leaving me and my students with severe respiratory and neurological injuries.

Hundreds of complaints were reported to the school. With no state or federal agency to investigate the tragedy, the school, community, and contractor attempted to cover it up, then denied all responsibility.
At the encouragement of then U.S. Secretary of Education William Bennett I retained an attorney and filed a lawsuit against the contractor, architect, and two manufacturers. Two dozen other injured students and teachers followed my lead and filed another claim. Just as we were getting ready to go to trial, our cases soon fell victim to a system just as deadly. In September 1987, our judge, Harrison County Circuit Court Judge Vincent Sherry and his wife were gunned down and murdered.

Although the killers were eventually brought to justice, Judge Sherry's murder radically changed the course of Swan's case as he was believed to be sympathetic to her cause.

After waiting fifteen years and suffering through two successful state supreme court decisions, my second judge, Judge Jerry O. Terry, was ruled out of order and kicked off my case for bias. My case was sent back to Harrison County Circuit Court, then assigned to a third judge, John Whitfield. In the interim, I had been educating myself on the law, ethics and court procedure. Experience had taught me to document everything, including license numbers and letters, and to record phone calls, conversations and meetings, even those with my own attorneys.

My case was finally scheduled to go to trial in February 2000. With less than a week to go, I knew something was wrong. My attorney, Paul Minor, was still not prepared for trial. He had not returned my phone calls. No witnesses had been notified, no exhibits prepared, and no instructions had been given. I was fearful and reminded Mr. Minor that, out of courtesy, he should call my doctors to schedule their testimony.

Minor revealed he was not planning to take my case to trial because Judge Terry had been bribed twice to delay my case, my case was now too old, and I would never receive any money because of an offset from my prior settlements. From Minor's list of settlement amounts, it was obvious that more than $200,000 was missing.

When I demanded an accounting, Minor threatened that if I did not accept his settlement, he would have my case dismissed. I refused to be bullied, reminding Mr. Minor that he had used threats and bullying tactics to force me to settle with the other defendants.

The day before my trial was to take place, Judge Whitfield allowed Minor to secretly withdraw from my case without accounting for the missing settlement. Judge Whitfield withheld this information when Minor failed to show for the docket call for my trial, then continued the intimidation by threatening to dismiss my case if I did not accept the settlement.

I responded by filing two judicial complaints against Whitfield. Whitfield immediately announced he was stepping from the bench, but not before he dismissed my case on his last day. He then sealed all court records and personally removed court documents to protect himself and Paul Minor.

Abandoned and betrayed, I fell into the abyss of despair. With the love and support of my family, I crawled my way out of depression to go on a quest to find out what went wrong. I spent long hours at the library and in front of the computer, researching reports and articles about toxic incidents at schools. Using my information, I began a campaign alerting the media and lawmakers about the dangers of toxic exposure to school children and the public. One of my letters was published in state wide newspapers.

I also began collecting articles about corruption in the courts. While scouring through hundreds of pages of campaign finance reports, I discovered the perfect bribery scheme: bribes disguised as personal loans. I turned my information over to state and federal law enforcement agencies, but they refused to investigate. Alone and without any support, I found myself locked in a dangerous battle with powerful, influential men who would do anything to keep me from exposing their scheme.

Public disclosure was my only option and my only means of protection. In the months that followed, I once again drew upon research and personal experience and wrote a series of editorials advocating legal and judicial reform. My series was published in statewide newspapers. After months of campaigning, the state supreme court finally revised the judicial code. With all my options exhausted, I filed six bar complaints against Paul Minor. Minor and Whitfield retaliated by publicly ridiculing me and attacking my credibility.

An investigative reporter for the Sun Herald spent six months investigating and writing a story about my case. At one point, he called me "courageous." I dismissed it and reminded him that after all my efforts I had not succeeded at finding justice. I began to wonder if perhaps courage wasn't measure by success, but the willingness to do the right thing in the face of failure. By the summer of 2002, the failures were still mounting. I had run out of money, out of time and out of options. I had finally pushed myself beyond my emotional and physical limits and was exhausted.

In spite of my chronic pain and physical disabilities, I was determined not to be a victim of injustice. On August 1, 2002, I decided to risk everything, including my freedom, to tell my story and expose Mississippi's conspiracy of silence. Speaking to the state legislature before a packed house, I told the story of the chemical injuries at my school and how we had been hurt and injured by a judicial system so tainted it had become toxic.

"Mississippi's legal system is not flawed," I said, "It has been corrupted." Then pleading with the legislators to reform the system, I exposed the dark side of the law, where lawyers exploit their clients, corrupt judges are left on the bench, and lawmakers protect their secrets.

A few weeks later, a reporter from the Sun Herald called and told me the U.S. Justice Department had launched an investigation using the information I had provided in one of my published letters. He claimed the newsroom had "connected the dots" and knew I was involved.

On October 8, 2002, the Associated Press broke the news that the U.S. Justice Department was investigating prominent attorney Paul Minor, newly elected Mississippi Supreme Court Justice Oliver Diaz, and two lower court judges, including John Whitfield, for their part in a judicial bribery scheme.

Two judicial trials and five years later, I was in the courtroom to hear Assistant U.S. Attorney David Fulcher deliver his closing argument. Mr. Fulcher claimed it was the "conspiracy of silence," that had hidden the bribery scheme. I turned to my husband, a look of shock on my face. "Conspiracy of Silence" had been the original title of my book, Toxic Justice.

After two months of testimony, it took the jury less than twelve hours to convict Paul Minor and former judges John Whitfield and Wes Teel on all fourteen federal counts, including racketeering, bribery and fraud. The following morning, the newspaper reported, "prosecutors repeatedly emphasized the defendant's 'secrecy' and 'concealment' of their financial relationship."

It was a personal triumph, a bittersweet victory. Unfortunately, twenty-two years after the chemical injuries at Long Beach Junior High School, no one has been held accountable.

Minor and Whitfield are scheduled to be sentenced on June 28th. Paul Minor has remained in jail since last fall for violations of court orders. Despite five years of exhaustive complaints to the state bar and his conviction last March, Minor has never been sanctioned by the Mississippi Bar and still retains his bar license.

John Whitfield continues to practice law, four months after his conviction. Despite his violation of bar and judicial ethics and federal law, Whitfield has never been sanctioned by the state bar, nor the Mississippi Commission on Judicial Performance.

If any other organization or individuals banded together to hide criminal conduct and to protect each other from prosecution, it would be called racketeering; in Mississippi it is called practicing law.

From: correspondence of Nancy Swan to Betsy Combier of ParentAdvocates.org, reprinted June 12, 2007 at http://www.parentadvocates.org/index.cfm?fuseaction=article&articleID=7330, accessed 02/15/09. The audio commentary of Nancy Swan was excerpted from the interview, "Judicial Misconduct; Taking a Bite Out [of] the Middle Class," broadcast November 17, 2008 on blogtalkradio as part of the "Change of Venue" series hosted by Zena Crenshaw, http://blogtalkradio.com/change_of_venue/..., accessed 02/14/09. Zena Crenshaw Logal is Executive Director of POPULAR, a nonprofit advocacy group for justice and the rule of law, http://www.popular4people.org. Nancy Swan is Vice President of POPULAR's Advisory Board. Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.